Opponents of Gov. Ned Lamont’s ongoing requirement that students wear masks in schools tried Monday to convince a Superior Court judge that recent actions by the state legislature had not made their lawsuit irrelevant.
The case stems from last August when lawyers, representing a group of parents opposed to school masking requirements, sued Lamont and the Education Department. They initially argued that masks posed a danger to children, but the case evolved into a separation of powers question after the court ruled the masks were an appropriate safeguard against coronavirus.
Now the lawsuit remains one of the last legal challenges to Lamont’s ongoing emergency authority as Connecticut courts, including the state Supreme Court, have upheld orders issued to curb the pandemic. And the school mask mandate is likely to be one the last lingering restrictions as Connecticut is set Wednesday to lift all remaining pandemic-related constraints on businesses and largely rescind masking requirements for fully-vaccinated people.
During arguments Monday, Cameron Atkinson, a lawyer for the CT Freedom Alliance, argued that those changes suggested that Connecticut was no longer in a state of emergency and therefore had no remaining reason to afford the governor emergency authority.
“We do not have people dropping like flies around us from COVID-19 right now,” he said. “The danger is dissipating… By the governor’s own public statements, by the [Centers for Disease Control’s] own public statements, we are no longer living in an emergency.”
But the crux of the group’s argument hinges not on whether the state is in an emergency — courts have so far roundly agreed that it is — but whether the state legislature had unconstitutionally ceded its authority to the governor throughout the pandemic. And Judge Thomas Moukawsher suggested that the question may have been settled by a related Supreme Court ruling and a set of bills passed last week by the legislature.
In addition to extending Lamont’s emergency authority again, this time until July 20, the legislature passed a bipartisan bill affording itself additional oversight of the governor’s power under emergency declarations. The bill included explicit time constraints for the durations of the declarations before they must be reconsidered. It also included a mechanism for a panel of legislative leaders to reject an executive order if they do not agree with it.
Moukawsher, who in March issued a non-binding ruling suggesting the governor’s orders required more legislative oversight, called the General Assembly’s recent activity on the issue “very impressive.” He questioned whether there was anything left to argue in the case.
“My biggest concern was the General Assembly not acting and now that it has, it’s probably none of my business,” the judge said.
Timothy Holzman, an assistant attorney general representing the state, agreed.
“This legislation raises what is an insurmountable question of mootness because they have acted and they have approved of these emergency declarations,” Holzman said.
Atkinson said the legislature’s actions did not resolve the plaintiffs’ concerns. He said it amounted to an agreement between the two branches of government to let Lamont “rule like a king.”
“[The legislature] has sat on its hands and basically handed power to the governor indefinitely and will keep doing so unless this court or another court says it can’t keep doing that,” he said.
Holzman disputed Atkinson’s estimation of the COVID-19 situation and the handling of it by the state government. Despite some “light at the end of the tunnel,” he said the public health crisis was ongoing and the legislature had settled the remaining questions in the case.
“There’s no basis … for a court to question the policy judgements of elected officials in terms of what remains necessary to get us out of this pandemic,” Holzman said.
It was unclear following the hearing when Moukawsher expected to issue a ruling in the case.
At an unrelated event Monday, Lamont told reporters he expected to continue the mask requirement for students and teachers at least through the end of the current school year “because, really, the kids haven’t been vaccinated and it’s the safest way to go.”
